SCM activity in the field of defending the independence of the judiciary. January-April 2007
14 May 2007 12:00
THE ACTIVITY OF THE SUPERIOR COUNCIL OF THE JUDICIARY IN THE FIELD OF DEFENDING THE INDEPENDENCE OF JUSTICE
monitoring report January-April 2007
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According to art. 1 paragraph 1 of Law no. 317/2004, republished, the Superior Council of Magistracy (SCM) is the guarantor of the independence of justice. Law no. 303/2004, republished, regarding the status of judges and prosecutors enshrines, as an obligation for the SCM and as a right for the judge or prosecutor, the defense of the latter against any act that could affect their independence or impartiality or create suspicions regarding these. Thus, according to art. 75 paragraph (1) ” The Superior Council of Magistracy has the right and obligation to defend judges and prosecutors against any act that could affect their independence or impartiality or would create suspicions about them .” And according to art. 75 para (2) “ Judges or prosecutors who consider that their independence and impartiality are affected in any way by acts of interference in their professional activity may address the Superior Council of Magistracy, in order to order the necessary measures, according to the law. “ Law no. 317/2004, republished, resumes these provisions but also adds the hypothesis of defending the professional reputation of judges and prosecutors, also at the ex officio notification of the SCM, as well as upon request.
International standards in the field of the independence of the judiciary require the establishment of the possibility of notifying an independent court if the personal independence of the judge or the judiciary as a whole is violated. This independent body in Romania is the SCM, which, including at the constitutional level, has been recognized as the guarantor of the independence of the judiciary. The special importance of the independence of the judiciary in the rule of law presupposes that this body has the possibility to have effective means for defending the independence, impartiality or professional reputation of judges and prosecutors.
The present research summarizes the activity of the Superior Council of Magistracy in January-April 2007 inregarding the most important attribution of this institution – guaranteeing the independence of justice – under the concrete aspect of defending the independence, impartiality and professional reputation of judges and prosecutors. As a working method, the resources available on the SCM’s internet address were mainly used. From this point of view, it must be emphasized that the decisions pronounced by the SCM are easily accessible, as well as the materials containing the agenda of the plenary sessions. The indicators we have stopped on are quantitative (number of cases solved by the SCM), content (situations found to be violations of independence, impartiality or professional reputation), as well as efficiency. (concrete ways of defending independence, impartiality or professional reputation).
1. Quantitative analysis. During the analyzed period, the SCM solved a number of 9 cases aimed at violating independence, impartiality or professional reputation. Of these, a number of 2 cases concerned the impairment of independence and the remaining 7 cases of impairment of professional reputation .
All the cases solved by the SCM were made at the notification of the judges or prosecutors, there being no case in which the SCM should be notified ex officio in order to defend the independence, impartiality or professional reputation. The subjects of the notification were 1 prosecutor and 12 judges .
2. Content analysis
a. In a number of 3 requests it was invoked, and the SCM found the damage of the professional reputation by publishing articles in the written press , either within a press campaign or in isolation; in other 2 cases, the existence of defamatory public statements in television shows was indicated as reasons for violating the reputation . In one case it was found that the professional reputation was affected by means of repeated petitions addressed to the court , with defamatory content, and in another case by the issuance by the court management of some internal notes. by which unjustifiably it is found the non-fulfillment of some professional obligations by the judge.
b. Regarding the two situations in which it was found that there was a violation of the judge’s independence, they concerned: – the existence of an interference in the activity of justice by a representative of the executive authority, respectively the Permanent Electoral Authority; – the perception on some pressures coming from the Italian Embassy and the Judicial Inspection of the SCM in connection with the settlement of a case.
3. Analysis of the efficiency of the defense mechanism.
a) Measures to repair the violations of independence, impartiality, professional reputation According to art. 30 para. 2 of Law no. 317/2004, in order to repair the violation of independence, impartiality or professional reputation, the Superior Council of Magistracy may order the verification of the reported issues , publication of its results , may notify the competent body to decide on the necessary measures or may order any other appropriate measure , according laws. The measures ordered by the Plenum of the Superior Council of Magistracy in the 9 cases in which it found the violation of the independence and professional reputation of judges or prosecutors were the following:
In all cases, the communication of the decision was ordered to the person who made the request (judge, respectively prosecutor);
I n 2 cases communication of the decision was ordered by Press Office and Public Relations of the CSM;
In one case, it was ordered to issue to the petitioner in relation to the facts which were found to have harmed the professional reputation of a judge of an address by which to inform him of the limits of freedom of expression provided by art. 30 paragraph 6 of the Constitution;
b) Duration of the intervention The violation of independence, impartiality or professional reputation, being likely to infringe even the fundamental value of the rule of law which is independent of justice, would require an immediate reaction capacity to ascertain, remove and repair the effects of guilty acts. In the following table we highlighted the duration of the SCM’s reaction to the date of notification and the date of committing the deed.
The date of committing the deed that harmed independence, impartiality, reputation
Date of notification to the SCM
Date of settlement of the application
It is observed that the average duration of solving a request to defend the independence, impartiality or professional reputation of the magistrate in the analyzed cases was approximately 4 months. The fastest, the SCM reacted after 9 days, and at the latest after 8 months from the notification.
1) The most important attribution of the SCM is that of defending the independence of the judiciary. Both the law on the status of judges and prosecutors and the law on the organization of the SCM establish the obligation of this institution to notify ex officio whenever there are suspicions regarding the violation of the independence, impartiality or professional reputation of judges or prosecutors. The obligation is also provided as a guarantee for the preservation of the independence of the judiciary itself, and not only as a measure of special protection of judges and prosecutors viewed individually. The right of judges and prosecutors to notify the SCM with a request to defend these fundamental values is subsequent,but it does not in any way replace the obligation to notify ex officio. Given the frequency of press materials regarding the professional activity of judges and prosecutors, the various public statements made by politicians regarding the activity of courts or judges and prosecutors, it is surprising that the SCM did not report in any situation ex officio to defend independence , impartiality or professional reputation , all the more so as the law provides this obligation even only for the situation when simple suspicions are created regarding them.
2) The quantitative analysis revealed the existence of a decreasing tendency of the number of requests formulated by judges or prosecutors in order to defend independence, impartiality or reputation. For example, in the same period last year, the SCM issued a number of 12 judgments in the same matter, compared to 9 in the first quarter of 2007. Given that all 12 judgments in 2006 concerned requests to defend the reputation professional and comparing with the 7 similar requests from 2007, results a decrease by 58.33%. Although in absolute numbers the decrease does not seem significant, it corresponds to a general trend, highlighted by comparing the data at the level of a calendar year. Thus, during 2005 they were registeredthe CSMa number of 40 such requests , while in 2006 their number dropped to 35. The explanations may be different, but the most likely seems to be that of dissatisfaction of judges and prosecutors with the effectiveness of the reputation defense mechanism. professional violated.
3) The SCM began to be notified with requests to defend the independence of judges and prosecutors. From this point of view, the two judgments pronounced in this matter come to define much more clearly the notion of “ independence ”, the cases and the ways in which it can be affected, as well as the limits of the allowed behavior in relation to its requirements. This is all the more so as recent studies show that Romanian judges and prosecutors themselves do not clearly define notions such as `independence of the judiciary`,` independence of the judiciary` or `independence of judges.
4 ) The most worrying aspect is the lack of the effective character of the measures ordered by the SCM in order to repair or remove the effects created by violating the independence, impartiality or professional reputation of judges or prosecutors. The entire procedure is finalized by a decision that has no other purpose than its publication on the SCM website, in a way that does not ensure its publicity in the true sense of the word. This is all the more serious as most acts of violation of professional reputation are done through mass media, thus achieving widespread dissemination of defamatory materials.The SCM does not use in all cases the most convenient method it has, namely the issuance and posting on the site of a press release to ensure to a greater extent informing the public about the facts found. In this situation, there are big questions about the efficiency of repairing the damage caused by violating the reputation of a judge or prosecutor. The verification of the SCM website shows that a single press release was published by the Press and Public Relations Office regarding the admission of a request to defend the professional reputation (Press release – Defense of the professional reputation of Judge GB, publication date: February 23 2007), although the decision on which it was drawn up does not expressly provide for the issuance of a press release, nor is its communication to the Press and Public Relations Office. In this situation we miss the criteria according to which decisions that were expressly communicated to the Press Office were not brought to the attention of the public by formulating some press releases, while others, for which these things were not ordered, are also presented in the form of a public communiqué.